Where to start?

The process of determining the scope of the provisions that we plan to include in the draft Code of Good Practice is crucial. An important part of this process is to identify the principles and values with which the organisation or association of organisations identifies itself and which will underpin the set of standards set out in the code and which will be positively received by stakeholders. Once the principles and values have been defined, it will be easier to translate them into appropriate provisions of the code of good practice.  When drafting a code it is worth taking a broader view of the organisation - the internal regulations that are already in place cannot be ignored, even if the code of good practice is being drafted for an association of organisations. This will allow us to avoid any possible contradictions in the provisions adopted.

When designing a code of good practice for an association of organisations, the additional challenge is to find solutions that, on the one hand, reflect the principles and values of all members covered by the code and, on the other hand, take into account their sustainable interest. Supervision of compliance with the standards established by the code of good practice is carried out internally, without the participation of public administration bodies. Therefore, especially in the case of codes adopted by associations of organisations, it is advisable to determine the method of supervision already at the stage of creating the document. A solution applied in practice, which should be assessed as positive, is the establishment of a dedicated body to supervise and examine notifications of infringements, as well as giving it specific powers and duties. The Code of Good Practices, although adopted by an organization or an association of organizations, in practice is applied by members of corporate bodies, employees, co-workers. Therefore, to ensure the effectiveness of the application of the code, care should be taken to ensure that its provisions and the purpose of those provisions are understandable and transparent.

Law above all

The standards of codes of good practice are not imposed by law. A given organization or association of organizations may establish it within the framework of self-regulation, deciding on the scope and content of the standards written in it.  All the more so when designing a code of good practice, its standards must be carefully formulated to ensure their compliance with the law. For this purpose, it is best to use the support of a lawyer who will take care of this. However, if for various reasons the adopted code happens to contain a provision that is contrary to the law, this provision cannot be applied. The applicable law must apply instead, and this should be the case even if the Code of Conduct states otherwise. Importantly, where a code of good practice relates to the situation of employees within the meaning of the Labour Code, a conflict with the law also arises if the situation of an employee is regulated in the code less favorably than under the Labour Law.

Notwithstanding the foregoing, it is worth emphasizing that the establishment of illegal standards in the Code of Good Practices may lead to violations of the law by acting by such internal standards. And this can have further consequences, including legal consequences. When there is a conflict with the law, your options for responding are limited-the law, first and foremost. However, in addition to such conflicts, there may also be conflicts between the Code of Best Practice and an organisation's own internal regulations or the codes of best practice adopted by its counterparties which the organisation is obliged to follow because of the business relationship it has with them. In this case, it is advisable to manage such a potential conflict already at the stage of creating the code of good practices - deciding which regulation will have priority (which, however, will not always be possible) or establishing a procedure for making such a decision. Such solutions will certainly contribute to the effectiveness of the application of the Code of Best Practice.

Any inconsistencies and contradictions in the code of good practice, including in particular those relating to legal regulations, defeat the purpose of introducing such a document - we should not assume that a code containing inconsistencies and contradictions will lead to building a positive image and increasing the trust of the organization that has established it, either independently or as a member of an association of organizations. Rather, it will have the opposite effect. Therefore, it is recommended that a newly introduced code of good practice should be designed consciously and thoughtfully and that the one already adopted for use should be revised periodically. To keep up with the changing legal reality as well as the development of our organisations.

What is the power of a Code of Best Practice?

There is no doubt that the Code of Best Practice is not a law. As a rule, with few exceptions, it is a set of norms created and accepted for application voluntarily. One may be tempted to say that this is where its power lies - in the possibility of developing one's own rules of operation based on values that are important for a given organization or association of organizations, which translates into improved transparency of its operations and building relations with the environment. And, consequently, building a positive image and trust.

 

Author: Paulina Rudowicz-Jastrzębska - Legal counsel, corporate law practice.

The article was published in Think Mice magazine: https://www.thinkmice.pl/news/prawo/2867-o-kodeksie-dobrych-praktyk-z-praktycznego-punktu-widzenia